Judge Thomas Is Locked in to Laissez Faire
James Boyle. James Boyle is a Visiting Professor of Law ., The Christian Science Monitor
AS Judge Clarence Thomas's confirmation hearings proceed, some senators will object to scrutiny of his beliefs. After all, they will say, this is a judge. His job is to apply the law, not make it. The Senate should be concerned with his competence, not his empathy for the powerless or his view of the world.
There is an answer to this objection. Ironically, it comes from another controversial conservative nominee to the Supreme Court, Judge Robert Bork. "It is naive to suppose that the (Supreme) Court's present ills could be cured by appointing justices determined to give the Constitution 'its true meaning,' to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... The question ... is not whether courts should make the law, but how and from what materials."
Judge Bork wrote these words in 1968. Then, it seemed obvious to him that the vagaries of language and history made it impossible for a judge simply to "apply" the law. Things are clearer to him now. He says he has no difficulty in "finding" the law. I think he was right in 1968 and that his words have some profound implications for Judge Thomas.
All judges have an ideology, a set of values and criteria that they use to "illuminate" the meaning of the law. For some, the intent of the framers is what counts; for others it is economic efficiency. Some judges think the words of the law alone will decide the case; others think that you must look to its purpose, or to some general set of principles underlying our social order. This issue cuts across party lines. Conservatives habitually browbeat liberals with charges of "judicial legislation," but they, too, cannot agree among themselves on the right way to interpret the law. (Judge Bork, for example, has at one time or another believed each of the above views to be "undeniably" correct.)
Judge Thomas apparently favors natural-law philosophy and laissez faire political theory as his guides to the meaning of the law. Should this disqualify him from confirmation? Not at all. But if all judges have an ideology, then the Senate should reconsider the questions it wants to ask.
One important question is whether this particular judge would ever modify his creed because of compassion or contrary evidence, or whether it shapes his perceptions so strongly that contrary evidence will be explained away, compassion preempted. …